Edward Soldal v. County of Cook , 942 F.2d 1073 ( 1991 )

EASTERBROOK, Circuit Judge,

concurring.

One might think from reading the dissenting opinion that we have rejected Entick v. Carrington, [1765] 19 Howell’s State Trials 1029. Yet everyone agrees that both privacy and possessory interests in a home are substantial and that the Soldáis are entitled to damages if their allegations prove true. All the court’s opinion, which I join, holds is that this dispute about premature eviction should be handled like other landlord-tenant disputes — in local housing court.

Dragooning such a case into federal court under the aegis of 42 U.S.C. § 1983 is lexically possible, for the fourth amendment is written broadly. When interpreting the Constitution it is tempting to see how far old texts can be pressed — for any limitations, any at all, create at least some possibility of horrible deeds slipping into the cracks. A sophisticated lawyer worried about abuses starts with the text and identifies its purposes and consequences. The fourth amendment protects both privacy and property — and of course property comprises many rights, including possession. Next comes a generalization in which the Constitution deals with whatever may threaten these interests to any degree. That move eliminates loopholes, but at the expense of making the fourth amendment so universal that it occupies the field of governmental action. Privacy and property interests just about exhaust the entitlements our legal system recognizes. As the fourth amendment bars unreasonable action, a reading taking the covered interests to the limits transfers to the federal judiciary the power to decide whether every public action is reasonable. What is left for the rest of the Constitution — or for state law and democratic choice?

If the fourth amendment indeed covers all governmental action interfering with possessory interests, the implications are startling. Public employees repairing a street negligently rupture a gas main, requiring the evacuation of a city block. That action invades a possessory interest, for it deprives the householders of the practical ability to use their homes. Negligence is never reasonable, and the fourth amendment establishes objective standards, under which the public employees’ states of mind do not matter. Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 1872, 104 L.Ed.2d 443 (1989); Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 2782-83, 86 L.Ed.2d 370 (1985); Scott v. United States, 436 U.S. 128, 136-38, 98 S.Ct. 1717, 1723, 56 L.Ed.2d 168 (1978). Public utility companies will be surprised to learn that turning off the water or electricity poses not only a problem under the due process clause, which they may solve by offering

their customers an opportunity to comment, Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978), but also a problem under the fourth amendment, requiring substantive federal review of the “reasonableness” of the decision — for disconnecting utilities is the step said to prevent the Soldáis from using their trailer and so violate the fourth amendment.

All the sheriffs’ deputies did was stand by while the landlord’s employees disconnected the trailer’s utilities and removed it from their lot. If this is a “seizure” of any kind by the deputies, cf. California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991), it is problematic only because state law specifies that a court order precede eviction. Indeed, the only reason why the removal of the mobile home is said to be “unreasonable” is that it violated state law, and this whether or not the Soldáis really were behind in their rent or disregarded some clause of the lease. Our case is another chapter in the saga of attempts to transmute state rules into constitutional ones. If the Soldáis were right in thinking that there was a “seizure”, the question would remain whether a federal norm, independent of state law, nonetheless deems their acts unreasonable. Elkins v. United States, 364 U.S. 206, 223-24, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960) (“In determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry.... The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have colorably suppressed.”). States could decide to allow landlords to engage in self-help and put the burden of initiating litigation on the tenant. If deputies may keep the peace during self-help in a state where tenants must start the legal proceedings, they may prevent violence during self-help in a state where landlords have (but disdain) the burden of initiation. Only state law distinguishes these cases, and the Constitution is unaffected by state law. It is hard to conceive of the Soldáis’ invocation of the litigation-first rule established by Illinois law as a claim under the fourth amendment, so the suit was properly dismissed even if a seizure occurred. States may decide for themselves how extensive will be the remedies for gun-jumping.